Right to Defence – Part 1

A state is under obligation to protect the life and property of its subject. But it is not possible for a state, howsoever resourceful and organised it may be, to depute a policeman to every individual for protecting his body and property. A state can never extend its help to all at all times and in all cases. In such a situation, based on the principle of self-preservation, an individual is given the right to defend his body and property. Obviously, the individual is expected to use force that is just required to counter the danger.

Sec 96 of IPC states that :- Nothing is an offence which is done in the exercise of the right of private defence.

This general rule is available against an act which is an offence under this Code. This section states that any act done in the exercise of right of private defence is not an offence. The words in the above section denotes that the right of private defence is a defensive right and not of retribution.

Private Defence of Body and Property

Sec 97 of IPC states that :- Every person has a right, subject to the restrictions contained in section 99, to defend—

First.—His own body, and the body of any other person, against any offence affecting the human body;

Secondly.—The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

Section 97 provides that right of private defence is of two types i.e. of body and of property. It makes it clear that subject to the restrictions u/s 99, every person has a right to defend his own body and body of any other person against any offence affecting the human body. It also states that every person has the right to defend his property and the property of other person, whether movable or immovable against the offences against property.

Restrictions on Private Defence

Sec 99 lays down the condition and limits within which the right of private defence can be exercised. It states that there is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act, may not be strictly justifiable by law. It also states that there is no right of private defence against the act done by the direction of public servant acting in good faith under colour of his office. Public servant is defined u/s 21 of IPC. There is no right of private defence : Against the acts of a public servant; and Against the acts of those acting under the authority or direction of public servant. To avail the benefit:-  

  • the act done or attempted to be done by a public servant must be done in good faith;
  • the act must be done under the colour of his office; and
  • there must be reasonable grounds for believing that the acts were done by a public servant as such or under his authority in the exercise of his legal duty and that the act is not illegal.

There are two explanations given u/s 99 of IPC.

Explanation 1.—A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant.

Explanation 2.—A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.

  • No right of private defence where there is time to have recourse to protection of the public authorities.

Sec 99 further stipulates that there is no right of private defence in cases in which there is time to have recourse to protection of the public authorities. The restriction is based on the fact that the right of private defence is given to the person to repel an imminent danger to his body and property when the state help is not available to him. Obviously, the necessity of self help disappears when the person has ample opportunity to have recourse to state authorities.

  • Right does not extend to causing more harm than necessary.

Sec 99 places further limitation on right of private defence. It states that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. It provides that the injury to be inflicted should be proportionate to the harm caused or attempted to be caused.

  • Right of Private Defence not available to aggressors:

In State of UP v. Ram Swarup, case, G and deceased M were trade rivals. At about 7 a.m. G went to purchase a basket of melons from the deceased. The deceased declined to sell it. Hot words followed. G left in a huff. An hour later G went to the market with his son R and two other sons. G had a knife, R a gun and the others carried lathis. They advanced aggressively towards the deceased who attempted to retreat. R shot him dead.  Here the accused pleaded private defence for claiming immunity from criminal liability. Here the Court rejected the plea of the accused and stated that the right of private defence is a right of defence and not of retribution. The Court further added that evidently the accused went to the market with a preconceived design to pick up a quarrel. There was no justification for killing the deceased selectively. The right of defence ends with the necessity for it.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

You may also like to read:

Social Media and Suicide 6

Balancing Life – Prayg Jain

Classification of Company – Members

Classification of Company – Liability

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